Friday, April 30, 2010

HR 5179 (Dahlkemper, D-PA), to amend Title 5, United States Code, to make clear that family coverage under the Federal Employees Health Benefits Program remains available with respect to an otherwise eligible child of a federal employee or annuitant until that child attains 26 years of age; to Oversight and Government Reform. H3077, CR 4/29/10.

The Health Subcommittee, House Energy and Commerce Committee, will hold a hearing on HR 4700, to provide for transparency in health care pricing; HR 2249, to amend Title XIX of the Social Security Act to provide for increased price transparency of hospital information and to provide for additional research on consumer information on charges and out-of-pocket costs; and HR 4803, to ensure health care consumer and provider access to certain health benefits plan information and to amend Title XIX of the Social Security Act to provide transparency in hospital price and quality information. 5/6/10, 10 am, 2322 Rayburn.

O’Melveny & Myers partner K. Lee Blalack II told the American Lawyer last March that a congressional hearing room is not a forum for divining the truth, according to The BLT: The Blog of Legal Times. The goal, he said, is minimal damage to reputation.

“Long, thoughtful pauses followed by rambling nonresponsive answers can easily devour half of a member’s allotted questioning time,” Blalack told the American Lawyer.

The New York Times says Blalack is helping the executives prepare along with Michael Bopp, a partner at Gibson, Dunn & Crutcher."

Criminal law -- Aggravated assault by threat with firearm -- Jury instructions -- Trial court did not commit fundamental error by including “and/or” conjunction between the names of the victims in jury instruction where, based on totality of circumstances, there was overwhelming evidence that defendant committed an assault on all the victims named in the instruction
Reported at 35 Fla. L. Weekly D815a

Criminal law -- Attempted lewd and lascivious battery -- Computer pornography -- Child exploitation -- Due process -- Outrageous government conduct -- Entrapment -- Law enforcement's use of reverse sting operation coordinated by private organization whose volunteers simply entered online chat rooms and waited for someone to solicit sexual activity from a person believed to be a minor was not so outrageous that due process considerations would bar prosecution -- Volunteers did nothing more than create an opportunity, and this conduct was not prohibited -- Although volunteer organization had a contingency fee arrangement with national broadcasting company, undisputed facts show that defendant was not solicited, induced, or otherwise lured into seeking liaison with volunteer decoy, and any concern that organization had incentive to manufacture crime or commit perjury was alleviated by fact that every conversation between defendant and decoy was electronically recorded and stored -- Failure of law enforcement to supervise or monitor volunteers did not violate due process -- Conviction of attempted lewd and lascivious battery was supported by sufficient evidence regarding preparatory steps defendant took towards consummating his desire to have sex with a thirteen-year-old and fact that defendant drove 200 miles to decoy home and arrived at prearranged time with flowers, chocolates, lubricant, and condoms
Reported at 35 Fla. L. Weekly D803c

Criminal law -- Prohibition -- Trial court erred when, after jury was sworn and over defendant's objection, it declared mistrial without engaging in any consideration of alternatives to mistrial and, thus, without determining that mistrial was a manifest necessity -- Defendant entitled to discharge
Reported at 35 Fla. L. Weekly D809g

Torts -- Automobile accident -- Rear end collision -- Accident occurring when motorcycle collided with rear end of defendant's automobile which stopped suddenly at an intersection where defendant had the right-of-way -- Presumption of negligence on part of driver of rear vehicle is not applicable in action by passenger of rear vehicle against driver of lead vehicle -- Issue is whether defendant was negligent as forward driver -- To the extent there exists evidence demonstrating that defendant was negligent as the forward driver, summary judgment against plaintiff is improper whether or not the presumption of following driver's negligence was rebutted
Reported at 35 Fla. L. Weekly D805b

Insurance -- Uninsured motorist -- Stacking -- Where insurer issued policy to Florida residents covering vehicles registered and principally garaged in Florida and also issued and delivered to insureds in Florida a policy covering vehicle which was registered and principally garaged in Delaware, an anti-stacking provision in the Delaware policy is unenforceable under Florida law where the insurer did not obtain the insureds' informed consent to the provision
Reported at 35 Fla. L. Weekly S201a

Civil procedure -- Dismissal -- Untimely service of process -- Trial court abused discretion in entering order of dismissal upon granting motion to quash service of process for failure to serve defendant within 120 days of filing of amended complaint, where statute of limitations had run at time of dismissal, defendant had been served before dismissal, and plaintiff demonstrated good cause for failure to timely serve defendant -- Provision to plaintiff of incorrect and misleading information regarding defendant's address by defendant's employer, who was also a defendant, coupled with defendant's postponement of scheduling of his deposition on numerous occasions, amounted to good cause for failure to serve defendant within 120-day period
Reported at 35 Fla. L. Weekly D764a

Civil procedure -- Creditors' rights -- Discovery in aid of execution -- Contempt -- In entering order on motion to compel discovery, trial court erred in retrospectively imposing sanctions payable to judgment creditor where order to compel did not find debtor in contempt -- Although, even without an adjudication of contempt, court may properly order a properly noticed party who fails to appear for deposition to make other parties whole for financial losses that the failure to appear causes, sanctions in order to compel cannot be upheld because no evidence was adduced to prove relationship sanction bears to reasonable expenses caused by failure to appear -- Order finding debtors in contempt for failure to comply with order requiring them to file fact information sheets using form 1.977 and imposing monetary sanctions is ambiguous on the question whether the monetary sanctions are criminal or civil in nature -- Monetary sanctions cannot be construed as criminal because the moneys are ordered to be paid to a private party -- Retrospective portions of monetary sanctions cannot be upheld as valid, compensatory, civil contempt sanctions because there is no evidence that the amount of sanctions has any relationship to the amount of damages suffered as result of debtor's failure to comply with trial court order
Reported at 35 Fla. L. Weekly D792a

Condominiums -- Assessment liens -- Assessment lien could not properly be imposed in favor of condominium association upon a unit for the repair of an air conditioner under either the declaration of condominium or the 1976 Condominium Act
Reported at 35 Fla. L. Weekly D768a

Contracts -- Statute of frauds -- Commercial lease was unenforceable where lease was for term in excess of one year but lacked two subscribing witnesses as required by section 689.01 -- Two signatures were required regardless of whether lease was deemed new or a renewal -- Conflict -- Doctrine of estoppel does not apply -- Tenant did not change its position in more than an insubstantial way where it was notified prior to effective date of new lease that it lacked two subscribing witnesses, and original lease was still in effect and not due to expire until nearly a year later -- Civil procedure -- Abuse of process -- Trial court properly dismissed counterclaim alleging complaint filed by plaintiff in an earlier case and subsequently voluntarily dismissed, and subsequent amendments to the complaint in this case constituted an abuse of process -- Plaintiff's presuit sentiments are irrelevant
Reported at 35 Fla. L. Weekly D782a

Contracts -- Real property sale -- Statute of frauds -- Joint venture agreement -- Evidence was sufficient to support trial judge's conclusion that there had been oral extension of due diligence period stated in agreement for purchase of property for development -- Parol evidence rule, which applies to oral agreements between the parties to a written contract which are made before or at the time of execution of the contract, did not prohibit evidence of subsequent oral agreement to extend due diligence period -- Oral extension of due diligence period did not violate provision of contract requiring that modifications would not be binding unless in writing, signed, and delivered by the party to be bound where purchaser relied on extension of due diligence period in its effort to bring about a joint venture which parties to contract were pursuing -- Statute of frauds -- Doctrine of estoppel prevents defendant from relying on statute of frauds to invalidate its agreement to extend due diligence period where purchaser changed its position in reliance upon the oral extension -- Accordingly, purchaser could terminate contract during extended due diligence period and obtain return of its deposit -- Damages -- Discussions regarding joint venture agreement were insufficient to support damage award where evidence established, at most, an agreement to agree -- Moreover, oral joint venture agreement for entire project is unenforceable because, as an agreement that is not to be performed within one year, it violates statute of frauds -- Defendant entitled to judgment in its favor on claim involving breach of joint venture agreement
Reported at 35 Fla. L. Weekly D774a

Unemployment compensation -- Voluntary termination of employment -- Misconduct -- Where claimant signed a memorandum acknowledging that his disruptive behavior adversely affected his work and the workplace, and that he had to rectify his behavioral problems, and claimant engaged in more disruptive behavior within days after signing memorandum, defendant was guilty of misconduct connected with his work -- Where employer placed claimant on thirty-day leave of absence so that he could get help for his psychological problems, and claimant filed for unemployment compensation benefits during that thirty-day period, claimant was not terminated from his job, but voluntarily quit -- Error to find that claimant was qualified to receive unemployment compensation benefits
Reported at 35 Fla. L. Weekly D771a

Venue -- Joint residency rule -- Individual defendant had venue privilege in his county of residence where cause of action also accrued in that county -- Individual defendant maintained this venue privilege, even though he was sued together with a corporation which also had its business residence in the same county as the individual defendant and a second corporation which maintained its principal business residence in another county -- No error in granting motion to transfer venue to county in which individual defendant resided and cause of action accrued
Reported at 35 Fla. L. Weekly D779a

Nursing homes -- Wrongful death -- Violation of resident's rights -- Discovery -- Confidentiality of nursing home residents' personal and medical records -- Trial court did not depart from essential requirements of law in compelling defendant nursing home to provide plaintiff the name, birth date, social security number, and forwarding and contact persons of a former nursing home resident whom plaintiff seeks to locate as a material witness -- Trial court's order is narrowly tailored, and court properly balanced the individual former resident's privacy considerations against plaintiff's need for information already possessed by nursing home
Reported at 35 Fla. L. Weekly D814a

Torts -- Insurance brokers -- Action alleging that defendant insurance brokers negligently created a “gap” in professional liability insurance coverage for insured by failing to have in place coverage under new policy upon expiration of term of original policy which was not renewed -- Surplus Lines Law, which governs insurance policies at issue, requires that insurer give insured at least 45 days' advance notice if policy is not to be renewed, and provides that if insurer fails to provide the 45-day notice, coverage will remain in effect until 45 days after notice is given or until the effective date of replacement coverage obtained by the insured -- Because insurer failed to provide the required notice of nonrenewal to insured, coverage under policy continued until the effective date of replacement policy procured by defendant, and any negligence on part of defendant did not result in damages to insured -- Trial court erred in finding that defendant created a gap in coverage
Reported at 35 Fla. L. Weekly D794a

Assault & Battery: FAILURE TO DEFEND CLUB FOR POST-ASSAULT NEGLIGENCE WAS BAD FAITH, Am. Best Food v. Alea London Ltd., 5 No. 24 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter April 6, 2010
In a case of first impression in the state, Washington's highest court has ruled that post-assault negligence that allegedly exacerbated a nightclub patron's gunshot injuries did not fall under an assault-and-battery exclusion in the club's insurance policy. The en banc ruling also found that the insurer acted in bad faith when it "gave itself the benefit of the doubt rather than give that benefit to its insured" by interpreting the policy in its favor and refusing to defend the nightclub.

Class Action: JUDGE OKS BAD-FAITH CLAIM IN PREMIUM REFUND CLASS ACTION, Pate v. Guarantee Trust Life Ins. Co., 5 No. 24 Andrews Insurance Bad Faith Litig. Rep. 2, Andrews Insurance Bad Faith Litigation Reporter April 6, 2010
An Ohio federal judge has determined that plaintiffs in a putative class- action lawsuit can move forward with their claim that an insurer acted in bad faith when it failed to fully refund unearned premiums they paid on policies covering their car loans. U.S. District Judge James S. Gwin of the Northern District of Ohio rejected the insurer's contention that state law does not recognize an independent cause of action for bad faith in such cases.In so ruling, the judge refused to limit bad-faith.

Saturday, April 3, 2010

Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. Last year, M. Patricia Smith, then New York’s labor commissioner, ordered investigations into several firms’ internships. Now, as the federal Labor Department’s top law enforcement official, she and the wage and hour division are stepping up enforcement nationwide. . . .

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I am a board certified appellate attorney and former chair of the Florida Appellate Practice Section. My firm concentrates on appeals and strategic trial support, to help businesses and individuals keep winning trial level judgments or get reversal of judgments against them. We are regularly asked to co-counsel with attorneys on complex appeals around the country, and admitted to and practice in the Florida and U.S. Supreme Courts, all federal Circuit Courts of Appeals , all Florida District Courts of Appeal, and the Southern and Middle Districts of Florida. When not doing law, I am a dedicated gourmet cook to my family and avid gardener, hiker, horseback rider, and consumer of murder mysteries.

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